A.P.Archanan v. N. Ayappan

ORDER The present Civil Revision Petition has been filed against the fair and decreetal order dated 20.01.2023 in I.A.No.2 of 2022 in O.S.No.59 of 2017 on the file of the Subordinate Court, Uthamapalayam, Theni District.

¶2The petitioners are the defendants in O.S.No.59 of 2017 filed by the respondent. The suit has been filed for the following relief:

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¶3In the suit, the petitioners herein filed an application under Order 7 Rule 11 (a) & (d) of C.P.C. to reject the plaint. The main contention of the petitioners is that the suit is based on original mortgage cannot be countenanced and consequently, the suit for mandatory injunction also cannot be filed. Reference is made to Sections 17, 47 of the Registration Act and Sections 58 and 59 of the Transfer of Property Act. In the light of the above provisions, it is submitted that the suit itself was barred under law. Hence, it is submitted that the Court has committed a grave error in dismissing the application filed by the petitioners for rejecting the plaint vide impugned order. The relevant portion of the impugned order reads as under: "(iv) This court sees that the Petitioners and Respondent are relatives and the daughter of Petitioners got married during the year 2015 with the son of Respondent and thereafter matrimonial dispute arose between them which resulted in divorce granted in HMOP.No.95/2016 by this court. This suit was filed at that time when the Petitioners and Respondent were at loggerheads by stating they shared water to fetch agricultural lands belonging to the Petitioners and the Respondent wants to return the amount received for it. The careful reading of the averments made in the plaint and written statement reveals that the real dispute is relating to sharing of water to the Petitioners through pipes passing through the agricultural lands belonging to the Respondent who had obtained such right in an agreement made with the 16 other landowners. The Petitioners and Respondent who are co-in-laws shared it peacefully when they were in good terms and when their daughter and son had matrimonial discord, their relationship strained and sharing of water to agricultural fields also emerged as a dispute and the suit came to be filed.

(v) The Petitioners in their written statement filed on

18.09.2017 did not raise and mention any of the grounds stated in the petition on hand. The Petitioners in para 4 and 5 of the written statement had given in detail about the arrangement made to share the vater on rotation basis and also the transaction took place between them. The Respondent in his plaint averments had mentioned it as oral mortgage and when the Petitioners seems to have accepted it and the dispute is only relating to the payment of amount then the plaint cannot be rejected. There is no necessity to delve into Sec.58, 59 of the Transfer of Property Act and Sec.17 of the Registration in this petition and if necessary then it would be dealt in the main suit.

(vi) This petition filed after 5 years from the date of filing the suit that too at the fag end of the trial cannot be entertained and countenanced. The plaint cannot be rejected on the ground it does not disclose a cause of action and barred by any law. This court finds no plausible grounds to allow this petition.

(vii) In the result, this petition is dismissed. No costs".

¶4I have considered the arguments advanced by the learned counsel for the petitioner.

¶5Whether the respondent is entitled for a relief in the suit for a mandatory injunction against the petitioners is a matter which has to be decided after trial. A properly instituted suit under Section 9 of C.P.C. read with Order 7 of C.P.C cannot be short circuited by filing an application under Order 7 Rule 11 of C.P.C. by stating that the suit is bared by law. The Court is also not required to look into the evidence while considering an application under Order 7 Rule 11 of C.P.C. All that the Court is required to see whether the suit is prima facie barred under any of the other circumstances specified in Order 7 Rule 11 of C.P.C. In this case, I find none. I do not find any reasons to interfere with the impugned order although it is not properly reasoned.

¶6Considering the fact that the petitioner has also filed a written statement in the suit, there shall be a direction of the Subordinate Court, Uthamapalayam, Theni District to dispose of the suit in O.S.No.59 of 2017 as expeditiously as possible preferably within a period of 12 months from the date of receipt of copy of this order.

7.The present Civil Revision Petition stands dismissed with the above observations. No costs. Consequently, connected miscellaneous petition is closed.

22.06.2023 NCC : Yes / No Index : Yes / No Internet : Yes / No sn To

1.The Subordinate Court, Uthamapalayam, Theni District.

2.The Section Officer Vernacular Section, Madurai Bench of Madras High Court, Madurai. C.SARAVANAN

,J.

SN

22.06.2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22.06.2023 CORAM THE HON'BLE MR.JUSTICE C.SARAVANAN and C.M.P(MD)No.7114 of 2023 1.A.P.Archanan 2.A.Selvi ...Petitioners/Petitioners/ Defendants Vs. N.Ayappan ...Respondent/Respondent/ Plaintiff PRAYER: Civil Revision Petition is filed under Article 227 of Constitution of India, to call for the records and set aside the fair and decreetal order dated 20.01.2023 made in I.A.No.2 of 2022 in O.S.No.59 of 2017 on the file of the Subordinate Court, Uthamapalayam, Theni District. For Petitioners : Mr.G.Vanjinathan